Digital

Viral Attack

December 7, 2012
• by Stephanie Forshee

Erik Syverson, a Los Angeles-based attorney who specializes in Internet defamation, has noticed a unique trend taking hold over the last 10 years: The more popular social media gets, the more defamation suits he sees.

“[Social media] has allowed every citizen in the country to publish statements about other people, businesses and entities that are accessible by the entire planet,” he says. “Before this, defamation was a relatively distinct, relatively rare type of claim,” one used primarily against media outlets and other entities with a wide audience.

But Syverson points out that winning any defamation case is a tall order. To prevail, a court must conclude that claims made against an individual or business are demonstrably false. Plaintiffs must also prove that the statements in question caused them to suffer an economic loss.

Social media, however, adds another twist. Courts are now forced to determine the limits of First Amendment rights.

Erik Syverson

That’s the challenge Norwood, Mass.-based Clay Nissan faces in its $1.5 million defamation suit against the brothers of a former employee. They claim the dealership fired their sister, Jill Colter, this past June from her service writer position because she had stage IV brain cancer. Dealer Scott Clay says Jill, who was deemed cancer-free before her dismissal, was let go from the dealership because of her conduct, adding that the dealership not only knew of her illness when she was hired, but also accommodated her as she endured treatments.

The brothers believe otherwise, and they took their fight online, launching a social media campaign to protest the dealership’s actions. Their Facebook page has already attracted more than 55,000 followers in support of their “Boycott Clay Nissan” drive. But Clay says the brothers’ campaign is built on falsehoods and inaccuracies, and the negative publicity cost his dealership more than $100,000 in sales in July.

Syverson, however, says the dealer will be hard-pressed to prevail on his position that the Colters’ accusations are false. “There are so many defenses, because the First Amendment is so strong in America,” he says, adding that “many judges are very skeptical that content on the Internet is taken as a statement of fact,” a requisite to prove defamation occurred.

Adam and Jonathan Colter organized two separate protests this summer at Clay Nissan of Norwood, Massachusetts. The brothers claim the dealer fired their sister because she had cancer, charges the dealer has denied.

Let the Boycott BeginAdam and Jonathan Colter launched their “Boycott Clay Nissan” campaign on June 21, nine days after their sister Jill was dismissed. They created a Facebook page, a Twitter account, a website dedicated to the boycott, and posted a petition on Change.org. And Facebook commenters were quick to share their outrage for what happened to Jill.

There’s the comment from Nona Johnson, who questioned Clay’s ethics. “Apparently, the people of this dealership [were] raised with no moral compass,” she wrote. “And I believe there is a very special place in HELL for them.”

Then there’s Cheryl Ruskiewicz. She was among the hundreds who vowed to boycott the dealership, and contacted Clay directly to let him know. She called Clay’s actions “deplorable” and, at the time, joined a force of nearly 1,500 strong to sign the Change.org petition. The petition, which is now closed, boasts signatures from about 2,300 people, while the “Likes” and reposts on Facebook continue to pile on.

Adam says he and his brother took to social media simply to get Clay’s attention, which they did. The dealer received thousands of hateful online posts, voicemails and e-mails, and the complaints are still pouring in. The brothers even staged protests in front of the dealership over the summer. For Clay, it wasn’t just the accusations the brothers have made about him and his operation that pushed him to file suit on July 10, it was the fact that he had no way to defend himself against their charges.

In September, a Norfolk Superior Court judge agreed with Clay that the damage done to his operation’s reputation is worth $1.5 million, an amount the brothers will be ordered to pay Clay if he is successful in his defamation suit. And as the court highlighted, the Colters never allowed Clay to respond to the claims they made on their Facebook page. They also removed any post or follower in favor of Clay from their page, leaving only derogatory content visible to the public.

“Folks that find it necessary to swing things in favor of Clay Nissan, and/or undermine the efforts of this campaign will be banned from the site … Anyone who defends their actions has ulterior motives,” read a post from Adam that Clay included in his complaint.

Clay also included a list of false accusations he says the brothers have made. There’s the claim the Colters made about another former Clay employee who supposedly was dismissed due to illness. The court, however, found insufficient evidence to investigate that charge since Adam was unable to produce e-mails he claimed to have received from the former employee.

“It’s beyond me how they could say we defamed them,” Adam told F&I and Showroom. “We wanted an open apology from Scott Clay. That’s all we wanted, and it has yet to come. Instead, what has come is a massive campaign attacking us and a lawsuit attacking us, and now they have managed to turn everything around and make it appear that my sister really deserved to be terminated.”

Adam Colter

Adam accuses Clay of telling falsehoods of his own. He says his sister e-mailed Clay two days after her termination to request her employee file. But Clay claimed on the ClayFamilyCares.com website — created in response to the brothers’ campaign — that he did not learn of her termination until June 25, 13 days after Jill was dismissed.

“It just does not sit well with me,” Adam says. “It doesn’t make sense to me that he would not know that a person, who just returned three weeks prior from a two-month leave of absence to do stage IV cancer treatment, was terminated. And then all of a sudden a petition site goes up, a boycott site goes up, and then — and only then — does he reach out to my sister.”[PAGEBREAK]

Trials and TreatmentsJill Colter took action as well, filing a discrimination case against Clay Nissan two weeks after the dealer filed his defamation suit. It marked the end of an employment stint that started out promising when she was hired in May of last year.

Christine White, Jill’s supervisor during her time with Clay Nissan, was one of four witnesses called during prejudgment hearings in August. She testified that Jill’s termination was unrelated to her bout with cancer. In fact, White said she was aware of Jill’s history with cancer when she hired her. According to her testimony, Jill was recommended by another local dealer who wanted to give her the opportunity to move to a larger store.

White recalled in her testimony that Jill’s brain metastases became more active in the first few months of her employment. She added that she allowed Jill time off at her own discretion during the following months for doctor appointments and to get localized radiation treatments.

“She needed time off to do that. Not a problem, not an issue,” White testified. “Gave her any time off she ever needed, never questioned her time off or what she needed to do or when she couldn’t come in to work or whatever the case may be.”

But White, who trained Jill after she was hired, also testified that she began noticing personality issues early in Jill’s employment, citing an incident where she “snipped” at a customer she was working with on the service drive.

“I was a little uncomfortable about approaching her, I’ll be honest,” White told the court. “It’s hard to when somebody is sick … I said, ‘I understand that, you know, you probably don’t feel well …’ She immediately snapped at me, and said, ‘Don’t you ever associate my behavior with my illness.’”

Nearing the EndFrom roughly March to May 2012, Clay Nissan allowed Jill to take paid leave to recuperate after she was declared free of cancer. During the three weeks following her return, White testified that several different personality conflicts arose, “and it got to the point where the common denominator was her.”

As the Colters have made clear, Jill’s employee file reflected no such issues, which Adam found fishy. He says Jill relayed to him that White simply told her upon her dismissal that the dealership was “going in a different direction” — reasoning Adam says has changed drastically over the past few months.

“Roughly three days after the boycott site went live, their story changed to, ‘An employee complained about you.’ And now the story’s changed again to, ‘Maybe a couple employees complained about Jill,’” Adam says, adding that disputes between service technicians and writers are not uncommon.

“It certainly wouldn’t be grounds to terminate somebody unless you’re trying to cover something up, for instance, discrimination against someone who has cancer,” he adds.

White admitted in her testimony that she wasn’t completely upfront with Jill during their conversation about why she was being let go. “I didn’t want to hurt her. Not getting along with people, people don’t like you, it just doesn’t seem nice to say to somebody,” White testified. “Maybe I shouldn’t have been nice.”

White also pointed out that, at the time of Jill’s termination, at least two other Clay Nissan employees were receiving cancer treatments as well. She also told the court that she is sensitive to such illnesses, given her son’s struggles with pre-cancer and related health issues for several years.

“I was appalled, I was astonished. I was being accused of firing a cancer patient ... It couldn’t be furthest from the truth,” she said in her testimony, adding that she constantly checked on Jill and assisted her with medical paperwork Jill provided her throughout the year.

Damage ControlClay declined to be interviewed for the article because of the pending litigation, referring all comments to his attorney, Scott Silverman. He told F&I and Showroom magazine that Clay did offer to reinstate Jill at one of his other four dealerships upon learning of her firing, a gesture Silverman says she ignored. Clay also extended Jill back pay and a commitment to pay her salary and health benefits for one year.

According to a July 19 legal correspondence sent by Silverman to Michael Mason, the attorney representing Jill in her discrimination case, the last offer was made “for distress that her termination may have caused her.” Jill accepted the payments, but not the job. Mason says Jill couldn’t bring herself to return to work for Clay because of how she was treated.

Silverman made clear to F&I and Showroom that the job offer “was part of an effort to address this overall situation to try to put it to bed.”

“I don’t think [the Clays] were ecstatic with the way [Jill’s termination] was handled,” he adds. “However, they still thought it was the right thing to do. But it blew up, and like anyone dealing with a situation blowing up, they made an effort to try to resolve it. Unfortunately, it hasn’t worked.”

Mason says he was surprised by Clay’s decision to pay Jill’s salary “considering how vehement their denials have been, because it seems to me they did acknowledge they didn’t handle things well. On the other hand, they’ve denied legal liability.”

When the job offer was ignored and the social media campaign continued, the dealer decided it was time to combat the Colters’ attacks. He hired public relations firm Ebben Zall Group to assist with the cleanup, then filed his defamation suit against the Colter brothers.

The complaint also lists a separate defendant named James LaFlamme, who Clay claims sent threatening e-mails to 19 of his employees on July 8. The e-mails read: “… This guy is only lucky that she isn’t my sister, or there would be a lot more going on than me sending some e-mails. Put this guy in his place and make him feel the pain he deserves so, so much … FORCE this piece of trash to make things right with this woman and her family.”[PAGEBREAK]

Counting LossesThe Colter brothers’ campaign hit Clay Nissan hard in the pocketbook. The operation’s CFO, James Sarno, testified in August that July was “one of the worst months that has ever been experienced by Nissan of Norwood.” He estimated the dealership sold about 50 fewer units that month than in its worst months, creating the more than $100,000 loss.

Bill Ebben, CEO of Ebben Zall Group, also testified on Clay’s behalf at the prejudgment hearings. His firm monitored, tabulated and recorded the thousands of posts across the boycott sites. It also categorized the Facebook comments into three groups: current Boston residents or those originally from the area, previous customers, and those from an undetermined location. Based on its analysis, Ebben said hundreds of Facebook protesters actively stated their refusal to give Clay Nissan business, whether they were a returning customer or potential client.

To that extent, the Massachusetts judge issued a $1.5 million attachment on the assets of the Colter brothers — $750,000 for defamation and the same amount for business interference.

The dealership’s employees also continue to face accusations and even threats from protesters; some of whom made their way inside the dealership this summer when the Colters staged two separate demonstrations.

White noted in her testimony the impact of the Colters’ campaign on Clay Nissan’s staff. “The mean, nasty things that are said on [Facebook], the things that they wish on my family, the phone calls that … my employees have to endure, the comments that they have to endure. It’s just not acceptable, it’s not fair,” she testified.

The protests have even reached Nissan’s North America headquarters. In an e-mailed statement, a spokesperson told F&I and Showroom that the company sympathizes with Jill and has engaged with Clay Nissan to better understand the circumstances of her termination. “While employees of Nissan’s dealers are not employed by Nissan North America, we are encouraging Clay and Ms. Colter to find a win-win situation as soon as possible,” the statement read. “We wish Ms. Colter the very best in her recovery.”

The Clay family has maintained its media silence, but it did issue the following statement following the court’s prejudgment ruling on its defamation suit in September: “… We hope now that a court has heard this matter and concluded that the employee was likely not terminated because of her cancer, as the organizers have claimed, these individuals will finally stop misrepresenting the facts and deceiving their readers.”

Free SpeechUntil the trial begins or both parties reach a resolution, the Colters’ campaign and their claims can, by law, continue to live online. Syverson, the defamation attorney, says removal of the content could only come with injunctive relief, which the Clays were not granted with the prejudgment.

Silverman echoes his take, saying the Massachusetts court had to be careful not to overstep First Amendment rights when it decided not to order the Colters to remove any online content. He says he did not press the issue to allow Clay Nissan to address the Colters’ allegations on their social media pages when the dispute is resolved.

Silverman adds that this case should serve as a warning to other dealers. “I’ve heard from all sorts of people where customers had a dispute over something and say, ‘Oh, I’m going to go on Facebook, I’m going to go on DealerRater.com and say bad things about you,’ and it becomes a point of leverage on smaller disputes,” he notes. “It’s something that’s definitely becoming a part of a dealer’s everyday life.”

Syverson, however, says that case law tends to favor defendants in such cases. “America is probably one of the hardest countries to be a defamation plaintiff, as opposed to a country like Britain, where the defendant has a burden to prove what they say is [true],” he says. “And there’s no First Amendment, which is one of the core tenets of our canon law.”

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